UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Flint E. Topping, 

Plaintiff 

v. 

State of Ohio Adult Parole Authority, 

Defendant 

Civil Action 2: 11-cv-00727 

Judge Watson 

Magistrate Judge Abel 

ORDER 

Plaintiff Flint E. Topping, a state prisoner, brings this action alleging that 

defendant illegally placed him on post-release control. This matter is before the Court 

on plaintiff Flint E. Topping's October 3, 2012 objections to Magistrate Judge Abel's 

Report and R~commendation that defendant's motion for judgment on the pleadings be 

granted. Plaintiff's objections are titled "Supplemental Discovery from Product of CourtOrdered Subpoenas." Within this document, plaintiffs asks the Court to strip defendant 

of any Eleventh Amendment immunity. 

Upon de novo review in accordance with the provisions of 28 U.S.C. 

§636(b)(1 )(B), the Court ADOPTS the Report and Recommendation and GRANTS 

defendant Ohio Adult Parole Authority's June 14, 2012 motion for judgment on the 

pleadings. ECF No. 35. 

In ruling on a motion for judgment on the pleadings, the Court accepts all 

well-pleaded material allegations of the complaint as true. JPMorgan Chase Bank, N.A. 

v. Winget, 510 F.3d 577, 581 (6th Cir.2007). The Court must then decide whether the 

moving party is entitled to judgment as a matter of law. /d. This is the same standard 

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applied in deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). /d. 

When considering a motion to dismiss pursuant to Rule 12(b )(6) of the Federal 

Rules of Civil Procedure, a court must construe the complaint in the light most favorable 

to the plaintiff and accept all well-pleaded material allegations in the complaint as true. 

See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v. Atlantic Corp. 

v. Twombly, 127 S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995); 

Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982). Although 

the court must apply a liberal construction of the complaint in favor of the party 

opposing the motion to dismiss, see Davis H. Elliot Co. v. Caribbean Utilities Co., 513 

F .2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or 

unwarranted inferences of fact cast in the form of factual allegations, see Mezibov v. 

Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443 F.2d 121, 123-24 

(6th Cir. 1971 ). In reading a complaint, however, a court will indulge all reasonable 

inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 

1072, 1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b )(6) is directed 

solely to the complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy 

Hosp. of Monroe, 451 F.2d 171, 173 (6th Cir. 1983), the court must focus on whether 

the claimant is entitled to offer evidence to support the claims, rather than whether the 

plaintiff will ultimately prevail, see McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. 

Ohio 1981 ). A federal court cannot consider extrinsic evidence in determining whether 

a complaint states a claim upon which relief can be granted. See Roth Steel Prods., 

705 F.2d at 155-56. 

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To survive a motion to dismiss under Rule 12(b)(6), the allegations in a 

complaint "must do more than create speculation or suspicion of a legally cognizable 

cause of action; they must show entitlement to relief." Lambert v. Hartman, 517 F.3d 

433, 439 (6th Cir. 2008) (quoting League of United Latin Am. Citizens v. Bredesen, 500 

F.3d 523, 527 (6th Cir.2007)) (emphasis in original). "Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not 

suffice. Twombly, 550 U.S. at 555. 

Plaintiff argues that the documents he has submitted demonstrate that he was 

released on the basis of the Barnes1 decision, which was predicated on the holding in 

Hernandez v. Wilkinson, No.1 :06-cv-158, 2006 WL 3420186 (N.D. Oh. Nov. 27, 2006). 

Plaintiff maintains that he was subject to constant harassment, multiple incarcerations 

and other personal and financial losses caused by the defendant's unconstitutional 

deprivation of his liberty. Plaintiff asks this Court to find that he has sufficiently stated a 

constitutional claim thereby stripping defendant of any from the Eleventh Amendment or 

any other source. 

As the Magistrate Judge noted, in Hernandez, the plaintiff sued officials of the 

Ohio Department of Rehabilitation and Correction and the Ohio Adult Parole Authority 

in their individual capacities. Here, Topping has brought suit against the Ohio Adult 

Parole Authority, a state agency. Defendant Ohio Adult Parole Authority is not an entity 

that can be sued. It is an arm of the state. The State is immune under the Eleventh 

Amendment from suits against it. See Will v. Michigan Dept. of State Police, 491 U.S. 

58,65-66 (1989); Foulks v. Ohio Dept. of Rehabilitation and Correction, 713 F.2d 1229, 

1

Piaintiff has not provided a full citation to the Barnes decision. 

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1232 (6th Cir. 1993). This Court cannot "strip" a state agency of its Eleventh 

Amendment immunity. 

The Clerk of Court is DIRECTED to enter JUDGMENT for defendant Ohio Adult 

Parole Authority. This action is hereby DISMISSED. 

IT IS SO ORDERED. 

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